Saved by the Shield

A reporter recalls his legal crucible after the Chiquita story

Ten years ago this month began a period of my life that I have come to call my season in hell. It was a prolonged horror of court hearings and depositions following the collapse of The Cincinnati Enquirer’s investigation of Chiquita Brands International. But like all calamities, it delivered unexpected insights. One of the most important for me was a fierce love of shield laws. To all journalists everywhere: you should love them too. These laws are fundamental to what we do. We should be fighting to get a federal shield law passed. So should every citizen who suspects that powerful institutions in our society regularly hide vital information from the public. After years of an uneasy truce between prosecutors and media organizations, federal officials have increasingly been dragging reporters to court and pressing them to reveal confidential sources. It is time to push back.

A decade ago, I learned the hard way that a shield law is one of the most important press protections we have. Shield laws, of course, give journalists the right to keep the names of sources confidential in legal proceedings. They are on the books in thirty-two states and the District of Columbia. Another seventeen states have upheld the idea of reportorial privilege in court cases (Wyoming is the only holdout). But no federal equivalent exists, despite repeated efforts in Congress.

My shield-law saga began on May 3, 1998, when the Enquirer published an eighteen-page special report, CHIQUITA SECRETS REVEALED, which detailed the political, legal, and economic woes of the huge Cincinnati-based banana company. As the number-two reporter on the project, I researched the troubled history of trade disputes between Chiquita and the European Union. I investigated environmental problems caused by pesticide use in banana production in Costa Rica. I interviewed displaced villagers in Honduras, banana farmers in the Caribbean, environmental experts in Washington, scientists in San Jose, and government officials in Brussels. I spent months studying banana production and researching Central American history. I checked my facts dozens of times. A brigade of lawyers vetted every sentence. I was proud of my work. I still am.

Lawyers and editors checked Mike Gallagher’s work as well. He was the lead reporter, and was focusing his work on allegations of Chiquita officials paying bribes at ports in Colombia. He relied heavily on anonymous sources. One of his sources, he claimed, was providing him with recordings of voicemails between Chiquita executives. My editors and the lawyers for Gannett, which owns the Enquirer, told me that I was not to know the identity of Gallagher’s source within Chiquita. If Chiquita sued, they said, the fewer people who knew the identity of this high-ranking source the better.

The project stunned provincial Cincinnati; the Enquirer had never attempted anything as ambitious in its history. But after the series ran, Gallagher unraveled. He argued fiercely with editors and me about strange follow-up stories that he hoped to publish. He ignored the directives of editors. When bosses questioned him yet again about his source and how he obtained information, he never gave clear answers. Worried editors sent Gallagher to an outside lawyer to talk about the project. He returned to announce that, on his lawyer’s advice, he would no longer talk about the project with anyone, inside or outside the Enquirer.

Soon we learned why: Gallagher had lied to us about having a source within Chiquita who had provided him information. Instead, he had illegally accessed Chiquita’s voicemail system himself, hundreds of times, despite being warned repeatedly not to do so by editors and lawyers. It was a stunning case of reporter misconduct, and, obviously, the Enquirer and I were caught in the blast. Under intense pressure from Chiquita, Gannett fired Gallagher, paid $14 million to Chiquita, and published a disturbing front-page apology that implied that Gallagher’s misdeeds had negated the entire series. The Enquirer and the rest of the Cincinnati media abandoned the substantive truth of the series. I was ordered not to write about Chiquita. The ban lasted five years.

It got worse. County officials set up a special prosecutor to investigate the newspaper and individuals who worked on the project. Gallagher, facing criminal prosecution, abandoned his carefully constructed self-image as an intrepid reporter and quickly cut a deal. He waived Ohio’s shield law and agreed to reveal sources. It was stupefying.

Within months of publication of what I thought was the best project of my young career, I found myself sitting in a shabby, windowless conference room in a low-rent section of Cincinnati’s modest downtown. My lawyer and I sat on one side of a scuffed table. The special prosecutor and his associates sat on the other side. They frowned and smoked cigarettes.

The special prosecutor wanted me to do something simple: sign a piece of paper agreeing to waive Ohio’s shield law. Doing so would require me to disclose confidential sources with whom I had spoken during the yearlong investigation. He made clear that the risks of not cooperating were great, and threatened to indict me on unspecified charges. I could lose my job; I could go to jail, he said. I must fully cooperate and waive the shield law or he would come after me. His threats, for a while delivered hourly in telephone calls to my lawyer, ranged wildly. He claimed he was going to prosecute me for being a co-conspirator of some kind. Now that I look back, his threats seem like bluster. At the time, they scared the hell out of me.

But early on in the crisis, I came to an unavoidable conclusion: keeping a source confidential was at the heart of being a journalist. I told the prosecutor I wouldn’t waive the shield. I clung to it.

Before the Chiquita fiasco, I considered journalistic responsibilities and rights in the abstract. I had a dim sense that the great challenges of my unfolding career might involve dodging bullets in a foreign war or secretly meeting some high-ranking White House official in a parking lot. Someday, in the future, I would be that journalist, I thought.

These notions, of course, evaporated in Cincinnati. My challenge was in that room with the chain-smoking special prosecutor. The question was not what journalist was I going to become, but what journalist was I at that moment. In this life, we learn about what we really believe not when things go well, but when they go wrong. I learned in that room that I would face jail rather than discuss confidential sources.

Looking back, I believe that my position was not machismo; it was an innate reaction as a reporter. I wasn’t just refusing to identify a particular person or persons; I was asserting that journalists, even amid failed projects, must stick to their promises and their rules. These rules did not evolve haphazardly; they developed naturally out of our essential role in an open society. Courts have not recognized the right of journalists to refuse to identify sources as flowing from the First Amendment. But journalists have resisted identifying sources since before the American Revolution.

I also don’t think my position was romantic. Reporters don’t promise confidentiality because of an idealized notion of the whistleblower. Though sometimes confidential sources are indeed heroic and altruistic, more often they are not. They sometimes have base motives, like revenge or personal gain. Some have political motives. Others have a grudge. Some are criminals, which can raise special complications that the courts have wrestled with over the years.

In fact, in the Supreme Court case that launched the modern shield-law movement, Branzburg v. Hayes (1972), Paul Branzburg, a Louisville Courier-Journal reporter, tried to assert First Amendment rights in refusing to reveal the identity of two hashish dealers he had profiled. (See “Attack at the Source,” by Douglas McCollam, CJR, March/April 2005.) The Supreme Court ruled five to four that the First Amendment does not protect journalists from having to testify against sources. The fact that Branzburg was shielding drug dealers didn’t help him. In its opinion, however, the majority acknowledged that “without some protection for seeking out the news, freedom of the press could be eviscerated.” This phrase helped press-freedom supporters argue for the creation and strengthening of shield laws in many states. What the First Amendment could not do, shield laws would.

Sometimes. In 1978, the New York Times reporter Myron Farber went to jail in New Jersey instead of revealing confidential sources on his story about a doctor charged with murdering his patients. More recently, in the performance-enhancing-drug scandal involving the Bay Area Laboratory Co-Operative (BALCO), San Francisco Chronicle reporters Lance Williams and Mark Fainaru-Wada risked federal prison for a source. With no shield law to protect them, the reporters were headed to prison. At the eleventh hour, a witness tipped off the FBI that Troy Ellerman, the company president’s lawyer, was the source. Confronted, Ellerman confessed. (The attorney cited his own cocaine and alcohol abuse as a factor in his decision to leak sealed grand-jury testimony.)

As you can see, sources often are not the kind of people you’d want as babysitters. Yet the reporters were right to not name names. In the case of BALCO, the work made an obvious contribution to the public’s knowledge of steroid drug abuse and aided public discussion of the topic. The issue gets more complicated in the Valerie Plame case, which became a kind of media Rorschach test: war opponents saw the New York Times reporter Judith Miller as an uncritical lapdog schmoozing with the Bush administration; media critics saw the Washington press corps as grotesquely sucking up to power. Miller’s source, Scooter Libby, seemed to be out to smear Plame’s husband, Joseph Wilson, in White House revenge for his revelations that were damaging to the administration’s prewar case against Iraq. Many journalists are convinced that this incident was not the moment to assert the principle of not revealing sources, that it was problematic. Still, I believe Miller made the correct decision to go to jail rather than reveal a source. She did what she was supposed to do. Until Libby personally released Miller from her pledge of confidentiality, she stuck by her word and asserted the principle.

It’s a simple equation: if people with sensitive information are more likely to get in trouble when they contact reporters, fewer of them will do it. If fewer people come forward, less critical information gets to the public. Democracy is not served.

In the current session of Congress, a federal shield law, pushed by Indiana Republican Mike Pence and others, passed the House and passed the Senate Judiciary Committee (see “The Shield Bearer,” CJR, May/June 2007). Since then, however, the bill has languished, waiting to be called to the Senate floor for a vote. If the bill dies in this Congress, we can only hope the same bipartisan group that pushed it will reintroduce another next session. All three presidential candidates have said they support the concept of the shield law.

Journalists often talk about confidentiality when recounting stories that went journalistically right—Watergate being the classic example. Promises of confidentiality are more important when things go wrong—and that is when a shield law is most needed. A source taking a risk to provide information doesn’t want to know what the journalist will say if everything goes smoothly. He or she wants to know that the reporter will not be compelled to talk if everything goes bust.

Toni Locy, formerly of USA Today, was found in contempt recently by a federal judge for refusing to reveal her confidential sources for a story about Steven Hatfill, the bioweapons scientist who is suing the government for naming him a “person of interest” in the 2001 anthrax cases. Former Attorney General John Ashcroft himself named Hatfill at a press conference, but whatever case the government was trying to build fell apart. Hatfill was never charged with anything. He has every legal right to sue the government and pursue his case. Hatfill’s lawyers feel forcing Locy to violate confidentiality will somehow further their case. They are pressing the issue for one simple reason: they can. There is no legal protection on confidentiality for journalists in federal court. They are not concerned with journalists’ ethical code; they just want to win. Would Hatfill’s lawyers try to force other lawyers to abandon attorney-client privilege? They wouldn’t think of it.

But Locy faces jail time and steep fines. U.S. District Court Judge Reggie Walton even tried to forbid USA Today from paying those fines. An appeals court overruled him, thankfully, but the fact that Locy is in this position at all is appalling. Similar cases have popped up in federal courts in Washington, D.C., Illinois, California, and elsewhere.

Critics kick around a standard series of questions regarding the creation of a federal shield law. Should journalists be granted shield protections for any story they write, whether about a corrupt politician or the moment’s plummeting celebrity? Who is a journalist, anyway? These are legitimate concerns. But they can be resolved with healthy debate. Another question that gets asked also has an answer: Are we really missing any stories without a federal shield law?

In truth, we don’t know exactly what stories we are missing. But it’s a safe assumption that as the risk of identification increases, fewer sources will come forward, and the public will have less information. Many questions raised about shield laws divert the discussion away from the fundamental point: the shield-law privilege is vital because it makes reporters neutral parties in any legal problems sources may encounter. That is its great function and sole purpose. Sources must know that by coming forth with information, they risk consequences. They will be sought out. However, they must also know that reporters will not reveal their names.

Unlike Judy Miller and Toni Locy and many others through the years, I had shield protection in the Chiquita case. Ohio’s shield law reads:

No person engaged in the work of, or connected with, or employed by any newspaper or any press association for the purpose of gathering, procuring, compiling, editing, disseminating, or publishing news shall be required to disclose the source of any information procured or obtained by such person in the course of his employment, in any legal proceeding, trial, or investigation before any court, grand jury, petit jury, or any officer thereof, before the presiding officer of any tribunal, or his agent, or before any commission, department, division, or bureau of this state, or before any county or municipal body, officer or committee thereof.

Nowhere in the legislation does it state the stories must meet some standard of societal importance. Or that the sources must meet some standard of ethical behavior. It’s a blanket privilege. And Ohio’s legal system has not collapsed since the shield law’s passage, back in 1953.

Of course, the Chiquita fiasco was by no means a simple shield-law case. Prosecutors went looking for chinks in the shield law in part because Mike Gallagher wasn’t just protecting sources. He broke the law. Gannett had no choice but to fire him. Facing prosecution, Gallagher quickly cashed in the only chit he had: he rolled on sources. He pleaded guilty to felonies, received probation, and promptly left journalism.

Then the prosecutors turned to me, and to others involved in the project. In my final showdown meeting with the special prosecutor, I wasn’t sure what he would do. I had resolved that it didn’t matter; I would stand by the journalistic principle of source confidentiality. I remember the moment: I held firm; the prosecutor stared at my face for a while, then shrugged. To my surprise, he backed down. He had threatened me for weeks, but this last meeting ended with a whimper. I signed a revamped document, which simply required me to tell the truth while maintaining the shield law—something I had done all along.

A few months later, a new special prosecutor (the county let the previous one go) assured me in a brief meeting that he wouldn’t challenge my right to the shield law. I took the witness stand once in a preliminary hearing in April 1999. I testified that an individual at one point had offered the Enquirer access codes to Chiquita’s voicemail, and I had given the information to Gallagher, since I wasn’t sure what we could do with it. I testified that Gallagher told me that an unnamed source had already provided him with the codes, and also that Gannett lawyers and editors had instructed him numerous times not to access Chiquita’s voicemail after he admitted he had briefly done so. No one asked me to identify anyone, and within minutes my involvement in any criminal proceedings was over.

The legal matters didn’t end, however; several civil cases dragged on for years, past when even the Enquirer cared to cover it in its pages. I was deposed numerous times. In several depositions, I had to repeatedly refuse to answer questions regarding confidential sources. At one point, a person whom Gallagher earlier had named as a source sued Gannett, claiming breach of contract. Along the way, he tried to get Enquirer employees, including me, to back up Gallagher’s assertion that he had indeed been a source. His lawyers were trying to force a journalist to reveal confidential sources in an attempt to prove their client had been revealed. Yes, it was as absurd as it sounds. The shield law’s importance for the free flow of information became clearer to me every time a lawyer pressed me to talk. Five years after the mess began, the U.S. Court of Appeals in Cincinnati upheld my right to the shield. The questions stopped.

To this day, I’m not sure exactly what transpired in all the legal wrangling. If I had waived the shield, would it have made a difference in who was prosecuted or how they were charged? Thanks to the shield law, I’ll never know. In the last ten years, people occasionally have asked me about my anonymous sources on the Chiquita project. I tell them what I have always said: I won’t discuss it.

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Cameron McWhirter is an investigative reporter for The Atlanta Journal-Constitution. Chiquita, it should be noted, was in the news recently when it admitted to paying about $1.7 million between 1997 and 2004 to a Colombian right-wing group designated by the U.S. as a terrorist organization. In a settlement with the Justice Department, the company paid $25 million in fines. It sold its Colombian banana operations in 2004.

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